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Substitutions.-Where there are substitutions to a bequest, the legal meaning of the expressions used is of importance. Where an unconditional legacy is left to one "and his heirs" "his executors," it passes to his proper representatives on his dying before the testator. If in addition to "and his heirs" the testament bear" and any to whom he shall bequeath it," or assignees," ," it would pass as above to his heirs, and not to the persons to whom he should assign or bequeath it, because he never had it to bequeath. So also a bequest simply to one" and his assignees" does not vest without survivance. When a legacy is bequeathed to one person, whom failing to another, the right of the latter is merely conditional, and takes effect only if the former die before the testator. There are often difficulties in the construction of the terms where more than one person is to have the benefit of a legacy. It is held that a legacy to two persons "jointly," or "jointly and severally," goes to the survivor.2 Å legacy "to two persons equally" is equally divided, and though one predecease the testator, the other only gets the half.3 Much litigation is often caused by indistinctness in defining legatees. One in his testament left a residue "to be divided amongst his poorest friends and relations, whom he had forgot therein, or in any other deed to be made by him, &c." The court found the trustees named by the testator vested with a discretionary power to divide the fund among the poorest relations on both sides, and ordained them to report their proposed division to the court. Where a testator's expression was the whole of my nephews and nieces," it was found to include nephews and nieces by the half-blood.5 Where an annuity of £300 was left to a son, and declared to be payable, if he left lawful children, "to the said children, equally amongst them during their respective lives," it was held that the annuity was not to suffer a proportional abatement on the death of each child, but must be payable in full down to the death of the last survivor.6

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In a special case, where one had left his property to all his nephews and nieces, and provided that if any one of them predeceased him, the share of such one should be divided among his other children-the children of a niece who had died before the date of the testament were found to have no share.7

E. iii. 9, 9, and Iv. n. B. P. 1878.- B. P. 1879.-3 Rose v. Roses, 15th January 1782, M. 8101.- Trustees v. Relations of Brown, 3d Aug. 1762, M. 2318.-5 Norris v. Norris, 11th December 1839.-6 Mackenzie v. Dickson, 11th March 1840.-7 Sturrock v. Binny, 29th November

It is held that where a trust is created, the interpretation of terms of substitution is not so favourable as in other cases, to the vesting in the parties first in order when they predecease the others,-that, "If there be a trust with an ulterior destination, if nothing shows an opposite intention, it will be held that that destination will not easily be defeated by holding the subjects of the bequest to vest." In the case where this was laid down, the money bequeathed was put in trust. to be divided between grand-nieces, but with the provision that it was to be lent on heritable security, the interest to be payable to them in liferent, and to their children in fee, and in case of the death of any without children, her share to go to the survivors. The share of one of the legatees who survived the testator, but died before the distribution, was found not to have vested.1

SECT. 6.-Taxes on Succession.

The moveable estate of the deceased, in passing to his successors, is subject to taxation. 1st, On the expeding of Confirmation (see below) a duty is paid on the Inventory of the whole succession at its gross value, without deduction on account of debts which may be to be paid from it.2 A proportional repayment is made when all the debts are paid, if applied for within three years; but the funeral expenses, and those connected with the inventory, &c. are not allowed for. If any casual omission is made in the inventory, it may be amended, and otherwise omissions and neglects are provided against by penalties. There is no duty where the estate is under £20; from that sum to £100 it is 10s., and from £100 to £200, 20s.5 2d, Each individual legacy of £20 and upwards pays a separate duty, rising by a scale adjusted to the compound ratio of the distance of relationship between the testator and legatee, and the amount of the sum. Where the legatee is a lineal descendant or ancestor, the duty is one per cent.; where he is a stranger, it is ten per cent. Certain sums succeeded to according to the rules of savings banks are exempt.7

Robertson v. Richardson, 6th June 1843.-2 55 Geo. III. c. 184. Sch. Part III. Ibid. § 51. Jur. St. ii. 605.-4 55 Geo. III. c. 184, § 37-44. -5 Ibid. Sch.-6 Ibid.-79 Geo. IV. c. 92, § 41.

SECT. 7.-Confirmation of Executor.

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The ceremony by which the moveable estate of the deceased is taken possession of, and applied to its destined purposes, is called Confirmation. It proceeds before the sheriff of the county in which the deceased was domiciled, acting as Commissary. If the deceased was permanently resident abroad when he died, the confirmation should be expede in Edinburgh.2 Confirmation is a decree authorizing the executor, upon making up inventory of the moveable estate of the deceased, to recover the property by the proper legal means, and administer it for those having interest. Where an executor is named in the testament, he is entitled, on producing that document, with a full inventory, to be confirmed. The process is in such case called Confirmation of a Testament Testamentar.3

When an executor is appointed by the commissary, the nomination proceeds on an Edict, or intimation to all concerned to appear on the occasion of the confirmation of an executor. The order of choice is as follows:-1st, A universal legatee (see Sect. 4.); 2d, The next of kin; 3d, The widow; 4th, A creditor-who may be confirmed to the extent of his debt, if it be constituted by a written obligation of the deceased, or the decree of a court; 5th, A legatee may be confirmed; and, 6th, The procurator-fiscal of the court but it is said that the last case never occurs in practice. All executors-dative must find caution to the satisfaction of the court. In all cases of confirmation, except that of executor-creditor, the executor gives in his inventory on oath, and he is entitled to eik to it such parts of the estate as may afterwards be discovered. If any portion is omitted, a person having interest may apply to be confirmed to the extent of the omission, or to have the executor compelled to make the addition. An executor-creditor must make oath to the amount of his debt, and give notice in the Gazette.6

Formerly confirmation was necessary to vest the property in the next of kin, if there were no testament, so that if he died without confirmation, the succession reverted to those who would have succeeded had he not existed. Confirmation is now, however, only necessary as an active title, to

14 Geo. IV. c. 97, 11 Geo. IV. & 1 Wm. IV. c. 69. 41.-E. iii. 9, 29. 11 Geo. IV. & 1 Wm. IV. c. 69, 4 Ibid 32. B. C. ii. 81.-5 1695, c. 41. E. iii. 9, 32. Jur. St. ii. 506.—6 E. iii. 9, 36, 37. 4 Geo. IV. c. 98.

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6 & 7 Wm. IV. c. 31.-3 E. iii. 9, 27. B. C. ii. 81, et seq.

enable the executor to pursue for the debts due to the deceased.1 A debtor is not bound to pay where there is no confirmation, unless he have given the executor a corroboration or acknowledgment of the debt.2 There is an exemption from the necessity of confirming in favour of persons succeeding to certain sums payable by savings banks and friendly societies.3

SECT. 8.-Duties of Executor.

The laws of preference to which the executor has to attend in paying the legacies has been above discussed. (See Sect. 4.) The payment of the testator's debts is a farther part of his duty as trustee for all concerned. Some of these are called privileged, they may be paid by the executor without any sanction, and must be paid before other debts.*

With regard to ordinary debts, if legal diligence at the instance of the creditor have proceeded so far against the debtor during his lifetime as to form a complete attachment, as by Poinding, Arrestment, &c., it may be completed against his effects after his death, as by Order of sale and payment, or Decree of Forthcoming. An executor may refuse payment of an unprivileged debt, not made real as above, until the creditor takes decree against him.5 The period of six months after the death of the deceased is allowed for the creditors to come forward. Within that period the executor cannot pay any unprivileged creditor, even if he has obtained decree, and all creditors who cite the executor within that time have an equal right according to the extent of their debts, to share in the divisible funds. The action

against the executor may, to save expense, be conducted by a trustee for a number of creditors concurring. Even after the six months, a creditor who raises a citation before the funds are divided is entitled to his share in the division, and one who gets himself confirmed executor-creditor has a preference. After having satisfied those who have so obtained a preference, the executor may pay with any remaining funds the first creditor who makes application, and if he do so without decree he will be responsible, not for the existence of funds sufficient to pay creditors who may afterwards appear, but only that the debt he paid was a just one. The creditors of

E. iii. 9, 36, 37. 4 Geo. IV. c. 98. B. C. i. 141.- Watson v. Marshall, 19th June 1782, M. 7009.- 9 Geo. IV. c. 92, § 41. 5 & 6 Wm. IV. c. 57, § 4. 10 Geo. IV. c. 56, § 24.-* For these see Index, Privileged Debts. B. C. ii. 83.5 E. íîï. 9, 43.—6 A. S. 28th February 1662. E. iii. 9, 45. B. C. ii. 86, et seq.

the executor have of course a right to attach any reversionary interest which he may have after the distribution of the fund. The creditors of the deceased have a constant preference, while the property he left can be clearly identified from the executor's own funds, and they have in all cases a preference for a year.1

Vicious Intromission.—The executor is liable to those interested in the succession only to the extent of the inventory, and for the application of ordinary care of the property intrusted to him. Any one, however, who enters on possession of any part of the moveables without confirmation, commits what is called a quasi delict, or fictitious crime, called vicious intromission, and the punishment of it is the liability of the intromitter for the debts of the deceased. The rule, however, undergoes an equitable restriction. If the intromitter be executor-nominate, next of kin, or universal legatee, and as such the person who should take the office of executor, he is saved from responsibility if he confirm within a year. If he is a stranger he is saved from responsibility for a debt if he confirm before being cited by the creditor. On all occasions the law looks more to the intent than to the act, and if there appears to be no fraud, any colourable title, such as an understanding that the property was his own, will save the intromitter from responsibility.2

CHAPTER III.

STRICT ENTAILS.

SECT. 1.-General Nature.

A PERSON, who is the absolute proprietor of an heritable estate, may so destine it that it must descend to a certain series of heirs, who cannot disappoint each other of their right of succession; this is done by a deed of Entail. The chief essentials of a strict entail are, that such restrictions as it may contain are enforced by an Irritant and a Resolutive clause.3 The former annuls and renders void any deeds

1695, c. 41. E. iii. 9, 43. B. C. i. 90. Tait v. Kay, 12th February 1779, M. 3142.- E. iii. 9, 49-53, M. St. ccclxv.-3 1685, c. 22.

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